With the RIAA now in control of the inJustice Dept. and able to more easily coerce judges, the recording industry is getting massive convictions of people who share songs. But will their hollow victories hold up in the Supreme Court?

Like many others, when I first heard about the $1.9 million the jury awarded the record labels from Jammie Thomas in her trial, my initial question was how that could possibly be constitutional and not excessive. However, given the immediate talk of settlements, I figured that question is unlikely to be asked in a courtroom. The EFF, however, has taken a look at the specific constitutional issues and how any appeal might be organized. There are two specific potential problems. First, the award is clearly designed to be punitive, rather than remunerative:

First, the Supreme Court has made it clear that “grossly excessive” punitive damage awards (e.g., $2 million award against BMW for selling a repainted BMW as “new”) violate the Due Process clause of the U.S. Constitution. In evaluating whether an award “grossly excessive,” courts evaluate three criteria: 1) the degree of reprehensibility of the defendant’s actions, 2) the disparity between the harm to the plaintiff and the punitive award, and 3) the similarity or difference between the punitive award and civil penalties authorized or imposed in comparable situations. Does a $1.92 million award for sharing 24 songs cross the line into “grossly excessive”? And do these Due Process limitations apply differently to statutory damages than to punitive damages? These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset’s attorneys.

The second issue questions whether the court has the right to try to use Jammie Thomas as an examples to warn off others (something the RIAA has been pushing for throughout this entire show-trial of a case):

Second, recent Supreme Court rulings suggest that a jury may not award statutory damages for the express or implicit purpose of deterring other infringers who are not parties in the case before the court. In other words, the award should be aimed at deterring this defendant, not giving the plaintiff a windfall in order to send a message to others who might be tempted to infringe. It’s hard to know without having been in the courtroom, but if the record industry lawyers urged the jury to “send a message” to the millions of other American file-sharers out there, they may have crossed the constitutional line.

Interesting stuff, should Thomas decide to push forward. The downside, however, is that for whatever reason, to date the Supreme Court seems to throw normal precedent out the window when it comes to copyright law. I was just reading a long study (more on that later) of how a series of recent Supreme Court rulings on copyright seem to simply ignore precedent and simply accept the myth of copyright’s importance over all else. Techdirt

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